[2023] KETAT 876 (KLR)

Brockley Investment Limited v Commissioner of Customs and Border Control (Appeal 1002 of 2022) [2023] KETAT 876 (KLR) (20 December 2023) (Judgment)

Neutral citation: [2023] KETAT 876 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Appeal 1002 of 2022

E.N Wafula, Chair, CA Muga, GA Kashindi, SS Ololchike & AM Diriye, Members

December 20, 2023

Between

Brockley Investment Limited

Appellant

and

Commissioner Of Customs And Border Control

Respondent

Judgment

Background 1. The Appellant is a company duly incorporated under the Companies Act of laws of Kenya. Its principal activity is the importation of electronic cigarettes and its spare parts for purposes of retail.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, Chapter 469 of the laws of Kenya. Under Section 5(1) of the Act, the Respondent is an agency of the Government for the collection and receipt of all tax revenue. Further under Section 5(2) of the Act, with respect to the performance of its functions under subsection (1), it is mandated to administer and enforce all provisions of the written laws as set out in Part 1 & 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws.

3. The Respondent carried out an audit on the Appellant and vide a letter dated 20th May 2022 issued a demand notice for Kshs 7,083,985. 00 being extra Excise duty taxes on electronic cigarettes parts.

4. The Appellant objected to this demand through its agent vide a letter dated 17th June 2022 stating its grounds of objection.

5. The Respondent reviewed the Appellant’s objection and vacated principal tax of Kshs 478,148. 00 on Entry No. 2019JKA4345514 and confirmed principal tax and accrued interest of Kshs. 6,605,837. 00 vide its review decision dated 15th July, 2022.

6. Aggrieved by the Respondent’s decision, the Appellant filed its Notice of Appeal on 14th September 2022.

The Appeal 7. The Appeal is premised on the following grounds as outlined in the Appellant’s Memorandum of Appeal dated 12th September, 2022 and filed on 14th September, 2022:a.That the Appellant is an importer and retailer of E-cigarettes as well as spare parts and accessories of the E-cigarettes classification under Tariff Code 8543. 70. 00. b.That the Respondent erred in law and fact by issuing a desk audit demand notice of Kshs 7,083,953. 00 which was arrived at by levying Excise duty on E-cigarettes, E-cigarettes cartridges and other spare parts not considered by the Excise Duty Act, No. 23 of 2015 (hereinafter ‘EDA’).c.That the Respondent erred in law and fact by failing to appreciate that the EDA provided explicitly that Excise duty at the specified rate is only to be imposed on E-cigarettes and E-cigarette cartridges. Subsequently, Legal Notice No. 239/2018, Legal Notice No.109/2019 Legal Notice No.194/2020, Legal Notice No.217/2021 adjusted for inflation the specific rates of Excise duty applicable on electronic cigarettes and E-cigarettes cartridges.d.That nevertheless, even as per the Legal Notices, the law was clear that Excise duty was to be charged only on E-cigarettes and cartridges to the same. Inspite of the aforesaid, the Respondent proceeded to erroneously impose Excise duty on spare parts and accessories not contemplated by the law.e.That the Respondent erred in law and fact by imposing Excise duty at the rate specified on glass replacements, replacement coil tanks, battery charges and other spare parts and accessories not contemplated by the law.f.That the Respondent erred in law and fact by failing to appreciate that a taxpayer is not to be taxed unless the words of the taxing statute unambiguously impose the tax upon him. In this case, the Respondent proceeded to impose tax on items not contemplated by the law.g.That the Respondent erred in fact and law by breaching presumption of regularity, the Appellant’s legitimate expectation and right to fair administrative action as contemplated under the Constitution of Kenya, 2010.

Appellant’s Case 8. The Appellant stated its case through its Statement of Facts dated 12th September 2022 and filed on 14th September, 2022.

9. The Appellant reiterated that it had undertaken the importation and retail of electronic cigarettes and their spare parts since 2018. It averred that owing to the novelty of the market, and prior to commencing importation, it sought the Respondent’s counsel as to the correct tariff code to be applied. It stated that after reviewing the products, the Respondent advised that the correct classification would be HS Code 8543. 70. 00.

10. That the HS Code 8543. 70. 00 heading reads as follows:“Electrical machines and apparatus, having, individual functions not specified or included elsewhere in this chapter;8543. 10. 00- Particular accelerations – 10%8543. 20. 00 – Signal generations- 10%8543. 30. 00 – Machines and apparatus for electroplating, electrolysis or electroplating, electrolysis or electrophoresis – 10%8543. 70. 00 – Other machine and apparatus – 10%”

11. The Appellant averred that since there is no specific provision for electronic cigarettes under the East African Community Common External Tariff 2017 (hereinafter ‘EACCET’), the Respondent advised the Appellant to import its products as “other machines and apparatus” which provision accrues duty at a rate of 10%. It stated that it has religiously paid the duty in the course of its transactions.

12. It contended that the dispute being appealed against herein is not an issue of classification, but rather the Excise duty imposed on electronic cigarettes pursuant to EDA and adjustments to Excise duty payable as per Legal Notice No.239/2018, Legal Notice No.109/2019, Legal Notice No.194/2020, Legal Notice No.217/2021 which adjusted for inflation of the specific rates of Excise duty applicable on electronic cigarettes as prescribed under the First Schedule of the EDA.

13. The Appellant asserted that the Excise duty imposed and subsequent adjustments were to be imposed solely on the E-cigarettes and Electronic cigarette cartridges. It argued that in the audit dated 20th May, 2022, the Respondent erroneously relied on the aforementioned Legal Notices and the EDA to levy Excise duty on Electronic Cigarettes, cartridges and its spare parts.

14. The Appellant narrated that the E-cigarettes have evolved over time from the single disposable E-Cigarette of the 1st generation models that came with provisions of accessories and spare parts. The spare parts and accessories include the e-liquid, drip tips, tanks, cartridges, coils, chargers and replacement glasses which can all be bought separately from retailers.

15. The Appellant stated that in addition to importing fully built units of E-cigarettes, it also imports the aforementioned spare parts and accessories. It argued therefore that in computing the Excise duty payable by the Appellant, the Respondent erroneously factored in the e-liquids, glass replacements, replacement coils, tanks and battery chargers despite the same not being dutiable under EDA or Legal Notice No.239/2018, Legal Notice No.109/2019, Legal Notice No.194/2020 and Legal Notice No.217/2021. It argued further that it was in appreciation of the same that the Respondent withdrew the demanded tax on e-liquids in its review decision for Entry Number 2019JKA4345514 yet the same treatment was not accorded to the rest of the entries.

16. The Appellant cited the case of Cape Brandy Syndicate by asserting that the wording of the aforementioned provisions were clear in that Excise duty introduced pursuant to the EDA and adjusted as per the various Legal Notices at prescribed rates, is only to be imposed on E-cigarettes and E-cigarette cartridges. It therefore stated that due to the fact that E-cigarette cartridges are also spare parts to an E-cigarettes, it should be noted that the aforementioned provisions do not list any other spare part or accessory to an E-cigarette that is excisable.

17. It was the Appellant’s assertion that had it been the intention of the legislature to impose Excise duty on any other spare part, then the same would have been lucidly stated and the effective rate on the same specified. It asserted further that as the same was not the case, the Respondent therefore erroneously and arbitrarily imposed Excise duty on the spare parts without any legal backing hence contravening not only the requirement that valuation be done using objective and quantifiable data, but also the principle that a taxpayer is not to be taxed unless the words of the taxing statute unambiguously impose the tax upon him.

18. The Appellant contended that the Respondent considered 18 entries made by the Appellant from 14th September 2018 to 1st April 2022 in its analysis and that from the description of the entries in its analysis, it was prima facie evident that the Respondent levied Excise duty not just on the E-cigarettes, but also their spare parts. A case in point was entry 2018JKA4131047 where the Respondent described the entry as vapes and accessories Nitecore intellicharger D2LCD Battery charger, Joytech Proc Head, Leaf just SST.

19. The Appellant contended further that in the aforementioned entry, vape devices/E-cigarettes comprised only 57 items in the entry, the rest of the consignment comprising 211 items were spare parts and accessories of various nature. It stated that the Respondent erroneously charged Excise duty on the entirety of the consignment comprising of the 211 items and that this erroneous computation was done on all the 18 entries on which the desk audit was done.

20. It therefore argued that the Respondent’s actions constituted a flagrant breach and disregard of the Appellant’s right to legitimate expectation. It asserted that this legitimate expectation was created when the Respondent’s Customs officers at the point of clearance verified the containers, examined the imports, sighted the products imported by the Appellant and cleared the same, deeming the taxes declared as appropriate without any further additional taxes being demanded for.

21. In elucidating the process of importation, the Appellant relied on the cases of Republic vs Kenya Revenue Authority Ex Parte Cooper K-Brands Limited (2016) eKLR and Krish Commodities Limited vs Kenya Revenue Authority (2018) eKLR. It argued that in essence and owing to the fact that the Appellant’s goods were cleared by the Respondent and entered within the Country is itself prima facie evidence that all taxes due had been paid. It relied on Section 2 (a) of the East African Community Customs Management Act, 2004 ( hereinafter ‘EACCMA’) to buttress its argument. The said Section provides as follows: -“For the purposes of this Act –a.Goods shall be deemed to be entered when the entry in the prescribed manner is made and lodged by the owner and any duty due or deposit required under this Act in respect of the goods has been paid, or security has been given for compliance with this Act”.1. The Appellant asserted that the Respondent’s actions are similar breach of the presumption of regularity and fair administrative action. It asserted that it always consulted the Respondent due to the fact that its line of business was highly novel. The consultations included seeking counsel from the Respondent as to the appropriate HS Code for its goods, and that having done so, it continued importation of its goods as per the guidance issued for over 3 years, while declaring the Customs duty and VAT payable. It is worth noting that no concerns were raised as to the declaration, and pertinently, no issue of excise duty was raised by the Respondent during this period.2. It was the Appellant’s assertion that should there have been an issue with the declared taxes, it should have been raised in the first instance. It therefore believed that the proper officers having given their approval, implied that the products imported were done so correcting and all duty required had been paid. It argued therefore that by subsequently demanding for Excise duty on items not even contemplated as being excisable by the EDA and the relevant notices, the Respondent is creating uncertainty and ambiguity in the law. The Appellant therefore expected that this uncertainty and ambiguity to be resolved in its favour.

Appellant’s Prayers 24. The Appellant prayed that the Tribunal grants the following prayers:a.That the Appeal be allowed.b.That the Respondent’s review decision confirming the erroneously levied Excise duty on non-excisable spare parts and accessories to E-Cigarette be set aside in its entirety.

The Respondent’s Case 25. In its Statement of Facts dated 14th October 2022 and filed on 16th October, 2022 together with its Witness Statement of one Diana Muriira dated and filed on the 18th April, 2023,that was admitted in evidence under oath on the 27th September, 2023, the Respondent summarized the Appellant’s grounds of Appeal by identifying two issues for determination.

a. Whether the e-cigarettes with its accessories is classified under HS Code 8543. 90. 00 26. The Respondent asserted that it is empowered by Sections 235 and 236 of EACCMA to conduct Post Clearance Audit (PCA) and to call for documents on imports and export operations of a taxpayer within a period of five years from the date of importation or exportation. It asserted further that where the PCA reveals that taxes were short levied, or erroneously refunded, it is empowered under Section 135 of EACCMA to recover any such amount short levied or erroneously refunded.

27. The Respondent stated that it examined and established that accessories like chargers that come with, and are presented together with their respective electrical goods, ( for example the vape devices and accessories-Nitecore Intellicharger D2 LCD Battery charger under Entry 2018JKA4131047 referred to by the Appellant) are classifiable together with the goods and not separately unless presented as such.

28. It argued that where accessories are presented together with goods for which they are intended for use like phones or laptops chargers, then these items constitute part of the subject good and can therefore not be regarded as spare parts. It stated that the Appellant in this case declared the electronic cigarettes as well as those electronic cigarettes presented together with their accessories in the same tariff code 8543. 70. 00, indicating the accessory presented for example, charger, is a component of the electronic cigarettes. In cases where the items imported are merely spare parts, then they should have been classified under tariff Code 8543. 90. 00.

29. The Respondent relied on Section Note 2 (a) of Section XVI of the EACCET which provides that parts of machines are to be classified in their respective headings and if the parts are suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading, they are to be classified with the machines of that kind.

30. That the said Section further provides that where parts are suitable for use solely or principally with electronic cigarette of Heading 8543 Section Note 2 of Section XVI of the EACCET, then the parts will be classified with its machine under tariff 8543. 90. 00 which provides for parts of Heading 8543 which specifies as follows:“8543 – Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter.8543. 10. 00 – Particle accelerations8543. 20. 00- Signal generators8543. 30. 00 –Machines and apparatus for electroplating, electrolysis, electrophoresis8543. 70. 00 – Other machines and apparatus8543. 90. 00 – Parts”

31. It argued therefore that the Appellant’s contention that the items imported were merely spare parts and not e-cigarettes was misleading.

32. The Respondent averred that the General Interpretive Rules (GIR) as cited in the EACCET govern classification of goods and that GIR 2(a) states that classification of goods in the Nomenclature shall be governed by the following principles:“2(a)Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented (or falling to be classified as complete or finished by virtue of this Rule) presented unassembled or disassembled”.

33. The Respondent stated that in its review decision it clearly indicated that the assessed taxes were on electronic cigarettes and in some instances, electronic cigarettes and their accessories all declared under tariff Code 8543. 70. 00. It stated further that according to Rule 2(a) of the EACCET an item shall be classified in its respective heading whether imported in an assembled or disassembled state and thus electronic cigarettes shall be classified under tariff code 8543. 70. 00 if imported in a disassembled state as per Rule 2 (a) of the EAC CET. Hence it correctly classified the e-cigarettes in disassembled form under tariff Code 8543. 90. 00.

b. Whether the Respondent breached the Appellant’s legitimate expectation and Right to Fair Administrative Action. 34. The Respondent contended that it followed the provisions of the law to conduct the Post Clearance Audit and demanded for the short-levied taxes as provided by the EACCMA and there cannot be a breach of legitimate expectation where the Respondent has followed the mandatory statutory provisions, as not following the provisions of the tax laws to the benefit of the Appellant is committing an illegality. The Respondent relied on the case in Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development Ex Parte Soweto Residents Forum CBO (2019) eKLR to buttress its argument.

35. It was the Respondent’s assertion that Article 47 of the Constitution codifies every person’s right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. It asserted further that there is a right to be given reasons for any person who has been or is likely to be adversely affected by administrative action. It stated that in this case the Appellant was heard at the objection stages and the objection decision clearly explained reasons for the decision. Further, that it considered all information provided before making its decision and that the Appellant did not point out which documents it believed were not considered.

36. It concluded that the burden lies with the Appellant to prove that the decision of the Respondent was wrong pursuant to Section 56(1) of the Tax Procedures Act (hereinafter ‘TPA’).

Respondent’s Prayers 37. Reasons wherefore the Respondent prayed that this Honourable Tribunal:-a.Dismisses the Appeal with costs for lack of merit.b.Upholds the Respondent’s decision dated 15th July, 2022

Submissions of the Parties 38. During the hearing on 27th September, 2023, Parties were directed to file their Written Submissions by the 12th of October, 2023. However, by the said date, only the Respondent had filed its submissions which the Tribunal will now proceed to consider. The Respondent’s Written Submissions dated 12th October, 2023 raised two issues for determination.

a. Whether the Respondent’s classification of electronic cigarettes, e-cigarette cartridges and other spare parts was proper in law. 39. On this issue, the Respondent submitted that classification of goods in the East Africa Community is done pursuant to the Harmonized Commodity Description and Coding System where under Harmonized System (HS), the Nomenclature is done in line with the GIRs and the Explanatory Notes (EN) to the HS. It submitted further that according to GIR1, classification is determined according to the terms of the Headings and any relative Section or Chapter Notes and provided the Headings or Notes do not require otherwise. Rule 1 of the GIR provides as follows: -“The titles of Sections, Chapters and sub-chapters are provided for ease of reference only, for legal purpose classification shall be determined according to the terms of the headings and any relative section or Chapter Notes and, provided such headings or Notes do not otherwise require according to the following provisions.”

40. It therefore averred that an understanding of Rule 1 of the GIR would render that if a product is classifiable under a Heading, Sections and Chapter Notes then Rule 1 would suffice. However, if the product is not easily classifiable within the ambit of Rule 1, then the subsequent Rules are used. The Respondent therefore applied GIR2 in classifying the electronic cigarettes and cartridges, vape liquids and accessories under Chapter 85.

41. It was the Respondent’s submission that Chapter 85 provides for electrical machinery and equipment and parts thereof, which Heading 85. 43 highlights electrical machines and apparatus, having individual functions, not specified or included elsewhere in this Chapter. The Heading includes the classification of the following items.“8543. 40. 10 – Electric cigarettes 35%8543. 40. 90 – Similar personal electric vaporising devices 25%8543. 70. 00 – Other machines and apparatus 10%8543. 90. 00 – Parts 10%”

42. The Respondent asserted that it factored the electronic cigarettes as well as their accessories in the same tariff subheading pursuant to Section Note 2 (a) of Section XVI of the EACCET which provides that: -“Parts of machines are to be classified in their respective headings and if the parts are suitable for use solely or principally with a particular kind of machine or with a number of machines of the same heading they are to be classified with the machines of that kind”.

43. The Respondent averred that it rightfully re-classified the goods on grounds that any parts of electronic cigarettes imported separately suitable for use solely and which as a whole constitute to make a complete electronic cigarette would be classified under tariff code 8543. 90. 00.

44. The Respondent submitted that it was proper in law in raising the assessment against the Appellant by placing its reliance on the decision in Republic vs Commissioner of Customs Ex Parte Mulchand Ramji & Sons Ltd (2010) eKLR where the Court stated as follows;“Since it’s the duty of the Respondent to levy and collect taxes, it follows that, it is the Respondent who determined the codes applicable to the various goods guided by the Harmonized codes. It is necessary to establish the exact contents of the goods and I believe the Respondent would have the necessary manpower or technical knowledge to do that”

45. It therefore submitted that it acted within its mandate in assessing the taxes under Chapter 85 and therefore the Appeal herein lacks merit and ought to be dismissed.

b. Whether the Respondent’s charge to tax on the Appellant is justified 46. The Respondent stated that it conducted the desk audit of the Appellant’s customs transactions covering the importation of electronic cigarettes, vapes and cartridges for the tax period September 2018 to April 2022 and that it is mandated under Section 235 of EACCMA to conduct PCA. It stated further that these powers may be exerted to call for documents on the import and export operations of a taxpayer within a period of five years from the date of importation or exportation.

47. The Respondent stated further that Section 234 of the EACCMA provides that the Respondent shall have the following powers in relation to inspection and audit of importation or exportation operations of a taxpayer:a.Verify the accuracy of the entry of goods or documents through examination of books, records, computer stated information, business systems and all relevant custom documents.b.Question any person involved directly or indirectly in the business, or any person in the possession of documents and data relevant to the goods or entry.c.Inspect the premises of the owner of the goods and any other place of the person directly or indirectly involved in the operation; andd.Examine the goods where it is possible for the goods to be produced.

48. It submitted that where the PCA reveals that there were short levied taxes, Section 135 of the EACCMA empowers it to recover any such amount short levied as if it were duty to which the amount was short levied.

49. The Respondent relied on the holding in Bharat General Agency vs Kenya Revenue Authority (2020) eKLR where it stated that: -“It was fully within the legal mandate of the Respondent to carry post clearance audit and demand for tax short levied taxes wherever it is clear that the amount paid is less what ought to have been paid”.

50. The Respondent averred that the Appellant had failed to discharge its burden of proof to demonstrate how the audit may have been punitive and the demand erroneous. It averred further that during the hearing of the Appeal, it was evident that the Appellant had imported the e-cigarettes as separate components and not as a whole as the Respondent had used the Appellant’s documents to conduct the PCA which indicated that the consignment was in parts. It therefore maintained that it was proper in raising the assessments based on the audit conducted on the Appellant and that it was well within the law to classify the Appellant’s products as it did.

ISSUES FOR DETERMINATION 51. The Tribunal has reviewed the parties’ pleadings, documentation availed and the Respondent’s submissions and is of the considered view that this Appeal distils into two issues for determination:i.Whether the Respondent’s re-classification of the Appellant’s spare parts and accessories under HS Code 8543. 90. 00 was justified.ii.Whether the additional tax as assessed is due and payable.

ANALYSIS AND FINDINGS 52. Having established the said issues for determination, the Tribunal will now proceed to analyse them as herein under:

i. Whether the Respondent’s re-classification of the Appellant’s spare parts and accessories under HS Code 8543. 90. 00 was justified 53. The Tribunal notes that the main bone of contention between the parties is what ought to be the proper classification of the spare parts and other accessories that compliments the e-cigarettes imported by the Appellant.

54. The Appellant stated that it has been importing and retailing electronic cigarettes, its accessories and spare parts since 2018 and that it has been classifying its e- cigarettes under HS Code 8543. 70. 00 which covers other machines and apparatus attracting a duty rate at 10%. It stated further that the Respondent erred in re-classifying its spare parts and other accessories under HS Code 8543. 90. 00 which also attracts duty at 10%. It argued that the Respondent created legitimate expectation when it withdrew the demanded tax on e-liquids in Entry No. 2019JKA4345514 yet the same treatment was not accorded to the rest of the entries. Further that the Respondent erroneously factored in some of the Appellant’s goods despite the same not qualifying for duty under the EDA and the relevant Legal Notices.

55. On its part the Respondent had stated in its demand notice dated 20th May,2022 that it conducted a desk audit on the Appellant’s transactions covering importation of electronic cigarettes, vapes and cartridges for the period September 2018 to April 2022. It stated that it also referred to the various Legal Notices covering 2018 to 2021 and established that there was non-payment of import Excise duty on the Appellant’s accounts. It stated further that while it concurred with the Appellant on the classification of the e-cigarettes at HS Code 8543. 70. 00, it differed with the Appellant in that the spare parts and other accessories qualify for duty at the same rate as the e-cigarettes as the parts are suitable for use solely or principally with the electronic cigarettes under Heading 8543.

56. Section Note 2 (b) of Section XVI of the EACCET provides that, parts of machines are to be classified in their respective headings and if the parts are suitable for use solely or principally with a particular kind of machines or with a number of machines of the same heading they are to be classified with the machines of that kind. The Section states as follows:“Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 84-79 or 85-43) are to be classified with the machines of that kind or in heading 84. 09, 84-31, 84. 48. 84. 66,84. 73, 85. 03,85. 22,85. 29 or 85. 38 as appropriate…”.

57. EACCET relevant to the assessment period specifies Heading 85. 43 and the subsequent subheadings as follows:“85. 43 – Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this Chapter.8543. 10. 00 – Particular accelerates u 10%8543. 20. 00-Signal generates 10%8543. 30. 00 – Machines and apparatus for electroplating, electrolysis or electrophoresis 0%8543. 70. 00 – Other machines & apparatus 10%8543. 90. 00 – Parts 10%”

58. From the above provision, it is the Tribunal’s considered view that the Appellant’s spare parts and other accessories would aptly be provided for under HS Code 8543. 90. 00 which provides for duty at 10%. Further that as per Section Note 2 of Section XVI of the EACCET, these parts are suitable for use solely or principally with the e- cigarettes whose classification under HS Code 8543. 70. 00 also attracts duty rate at 10%.

59. Although the Appellant had argued that in vacating the tax for Entry Number 2019 JKA4345514, the Respondent ought to have also vacated the tax for the other entries, the Tribunal notes that what distinguished this from the other entries was that it consisted of e-liquids which in the view of the Tribunal neither falls under HS Code 8543. 70. 00(other machines & apparatus), nor HS Code 8543. 90. 00(parts).

60. In view of the foregoing, the Tribunal finds that the Respondent was justified in re-classifying the Appellant’s spare parts and accessories under HS Code 8543. 90. 00.

(ii)Whether the additional tax as assessed is due and payable 61. Having established that the Respondent was justified in re-classifying the Appellant’s spare parts and accessories under HS Code 8543. 90. 00, it follows therefore that the assessed tax is due and payable.

Final Decision 62. The upshot of the above is that the Appeal lacks merit and the Tribunal accordingly proceeds to make the following final Orders:-a.The Appeal be and is hereby dismissed.b.The Respondent’s review decision dated 15th July, 2022 be and is hereby upheld.c.Each party to bear its own costs.

63. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2023. ERIC NYONGESA WAFULACHAIRMANDELILAH K. NGALA CHRISTINE A. MUGAMEMBER MEMBERGEORGE KASHINDI SPENCER S. OLOLCHIKEMEMBER MEMBERMOHAMED ADIRIYEMEMBER